40 Haw. 644 | Haw. | 1955
This is an appeal from a decree granting an absolute divorce and custody of four children to appellee, ordering payment of $120.00 per month for their support and maintenance, and awarding appellee $5,000.00 alimony in gross.
Appellant filed a libel for divorce alleging grievous mental suffering to which appellee entered a general denial and a cross-libel alleging grievous mental suffering and extreme cruelty. Upon discontinuance of the cross-libel, a second cross-libel was filed upon the same grounds seeking the care, custody and control of the four children and a reasonable allowance for their support and maintenance, together with a reasonable allowance as periodic alimony or, in the alternative, an award of alimony in gross. Appellant denied the allegations of the cross-libel; trial was had upon issue so joined, at the conclusion of which appellant's libel was dismissed the trial judge finding only the allegations of the cross-libel supported by the evidence adduced.
A decree was entered on April 5, 1954, granting an absolute divorce to appellee upon the grounds alleged in the cross-libel; awarding the care, custody and control of the four minor children to appellee; and ordering payments of $30.00 per month for the support and maintenance of each child, commencing on the tenth day of April, 1954. The decree also awarded $5,000.00 to appellee as *646 alimony in gross payable on or before the first day of October, 1954.
The six specifications of error, all directed to that portion of the decree awarding appellee $5,000.00 alimony in gross, are consolidated into two issues:
First, was the award of alimony in gross an abuse of discretion?
Second, was the amount of $5,000.00 so awarded excessive and an abuse of discretion?
Determination of the propriety of the award in the circumstances presented necessitates consideration of the nature and effect of alimony in gross as contradistinguished from periodic alimony. In this jurisdiction both are grounded upon statutory provisions granting such suitable allowance to the wife "for her support, as the judge shall deem just and reasonable, having regard to the ability of the husband, the character and situation of the parties, and all other circumstances of the case." (R.L.H. 1945, § 12226.)
It is settled that alimony may be awarded in the form of an allowance of periodic payments without designation of the total amount payable and subject to modification at any future time as the change in circumstances and needs of the parties dictate (Laing v. Laing,
No statutory authority exists for awarding alimony in gross in lieu of a periodic allowance. However, in Nobrega v. Nobrega,
What constitutes a "proper case" or the "special circumstances" warranting an award in gross depends upon the circumstances of each particular case, having due regard for the best interests of the parties and the husband's financial ability to respond to such an award. (Lyon v. Lyon,
An award of alimony in gross accomplishes a more equitable result than periodic alimony in circumstances where a wife has contributed real or personal property owned by her at the time of marriage, or where property has been accumulated after marriage by the joint efforts *648
of husband and wife. In such cases, it is generally held that a wife's contribution should be restored out of the estate of the husband so acquired. (Donini v. Donini,
No inflexible criterion exists which embraces the myriad of potential circumstances wherein an award in gross is proper. There undoubtedly are situations other than those enumerated which may justify an award in gross; but the governing principle deducible from the numerous views expressed is that the granting of an award in gross should properly be confined to those cases wherein the presence of special circumstances might require it or render it advisable. (Yandell v. Yandell,
The trial judge found that appellee "expended much of her youth and health" during eighteen years of marriage "in assisting in the accumulation of what property the parties have acquired" and that $6,000.00 realized from the sale of ten acres of unimproved realty in which appellee held an undivided one-half interest by gift from appellant had been "used to pay a mortgage" upon the family homestead or "otherwise expended" by appellant. The trial judge further found that appellee had earned $142.00 in 1950, $1073.79 in 1951 and $1104.05 in 1952 by her own employment, all of which had been tendered to appellant except portions thereof which she was compelled to expend in supporting herself and the four children while the parties were separated. The finding that appellee "has accordingly assisted materially in the accumulation of the *650 property libellant now has in his possession" is amply supported by the evidence.
The findings upon the acts of grievous mental suffering and extreme cruelty by appellant toward appellee over an extended period, the contributions by appellee toward the accumulation of property now constituting appellant's sole estate, and the apparent extreme animosity existing between the parties, in our opinion, dictate a departure from the rule normally favoring periodic alimony over an award in gross. Those findings constitute requisite circumstances establishing a proper case warranting the award of alimony in gross and a final settlement of all matters and rights having their inception in the marital status. No abuse of discretion has been established.
The second issue contends that the award of $5,000.00 is excessive. This is urged upon the dual theory that the valuation of the assets of appellant as found by the trial judge was excessive and that the award premised upon that valuation was excessive.
The award was computed upon evidence esablishing a valuation of appellant's net worth to be in excess of $15,000.00 consisting of:
Personal property (miscellaneous household items and vehicles) _____________________________________ $ 2,875.00 Undivided one-half interest in 10.3 acres of unimproved land valued at $450.00 per acre _______________ 2,391.75 Homestead (2.71 acres) _____________________ 10,000.00 Total ______________________________________ $15,266.75
The valuation of the personal property and of the unimproved acreage was premised largely upon appellant's testimony, although that of the value of the homestead was conflicting. Appellant asserted the value of the homestead to be between $8,500.00 and $8,800.00. Appellee testified that appellant had offered it for sale at $15,000.00, at a time unspecified in the record, with no purchasers. *651 Upon this issue, the testimony of an independent appraiser establishing the value of the realty at $2,000.00 and of the improvements at $8,000.00 was characterized by the trial judge "to be worthy of credit and under the circumstances the fairest value presented."
Where evidence is conflicting and the findings depend wholly or largely upon the credibility of witnesses, such findings will not be disturbed upon review unless the evidence clearly requires a contrary conclusion. (Daitoku v. Daitoku,
Appellant contends that the award of $5,000 computed upon his net worth of $15,000.00 was excessive and an abuse of discretion. Section 12226 of the Revised Laws of Hawaii 1945 upon which the award was granted contains no guiding provisions for the computation of an award in gross. That determination, in the absence of agreement, is reposed in the sound discretion of the trial judge, subject only to the limitation that the amount be "just and reasonable, having regard to the ability of the husband, the character and situation of the parties, and all other circumstances of the case." (R.L.H. 1945, § 12226; Chong
v. Chong,
In the absence of statute, an award in gross is not required to be limited to admeasurement of a husband's present estate. (Steinman v. Steinman,
The award of $5,000.00 represents less than one-third of appellant's net worth of $15,266.75, and does not, in our opinion, deviate from the foregoing principles. Appellant correctly contends that appellee will continue to retain a one-half undivided interest in the remaining unimproved acreage, which acreage is valued at $2,391.75 and is listed as a part of appellant's sole estate. It was established that ten acres of the unimproved realty of 20.31 acres in which appellee originally possessed an undivided one-half interest were sold by appellant and the major portion of the proceeds of $6,000.00 applied in amortization of a mortgage upon the homestead now held as his sole estate. One-half of the proceeds of that sale, or $3,000.00, constituted appellee's sole property, but was never tendered to her. Viewing the one-half interest as an outright gift to appellee, we find the computation of the gross award herein to be equitable, in view of appellee's contribution of personal services during 18 years of marriage and her contribution to appellant's sole estate of the major portion of her earnings of $2,319.84.
We conclude that the award of $5,000.00 was computed with due consideration of the amount, character and reasonable value of appellant's present estate and the ratio of that amount to his net worth. Appellant has failed to establish any abuse of discretion by the trial judge in computing the amount decreed.
We find, however, that the effect of the time limitation imposed in directing payment of the gross award within six months after rendition of the decree, in view of the nature of appellant's sole estate and all of the facts and circumstances here presented, would unjustly penalize him by forcing an inexpedient sale or other disposition of his remaining assets to meet that limitation. Wherever possible, the time of payment should be so fixed as to avoid a sale, at a great sacrifice, of a husband's property. (Nobrega *654
v. Nobrega,
Appellee presents one issue warranting determination. It is contended for the first time on appeal, that the entire record is not before us, and that "the Court cannot properly review and determine the issues in controversy upon the incomplete and insufficient record." It is argued that the record in its present state fails to disclose that the lower court acquired jurisdiction either of the parties or of the subject matter of the proceedings. Rules 75 and 76 of the Hawaii Rules of Civil Procedure provide a remedy for allegedly deficient records such as here contended, but inasmuch as this cause was presented on appeal prior to the effective date of the Rules, appellee's contentions warrant clarification.
In this jurisdiction the rule prevails, as appellee contends, that an appeal from a divorce decree is in the nature of an appeal in equity. "[S]ince the act of 1903 * * * which transferred the jurisdiction of divorce cases to the circuit *655
judges at chambers, divorce decrees have been reviewed upon appeal, and the entire testimony is examined as in appeals in equity suits." (de Coito v. de Coito,
The principle that divorce decrees be examined in the light of all of the evidence presented below as in equity appeals, does not apply where the issue for determination does not necessitate an examination of the entire record. (Hyde v. Clift,
The foregoing principles are applicable to divorce actions viewed as proceedings in equity. Appellee notes that the instant record does not contain (1) appellant's libel for divorce, (2) appellee's answer, (3) appellee's original cross-libel filed with her answer, (4) appellant's answer to the original cross-libel, (5) the order discontinuing the original cross-libel, and (6) the order dismissing appellant's libel for divorce. Objections to the insufficiency of a record must be grounded upon a firm showing that the omitted pleadings are indispensable to the determination of the issues on appeal and that such issues have not been subsequently abandoned (Whitwell v. Whitwell, 318 Mo. 476,
We construe these remarks to constitute an unequivocal abandonment of the original cross-libel and the joinder of issue below upon the second cross-libel, there being no subsequent amendments thereto. Consequently, the original cross-libel, the answer thereto, and the discontinuance of the original cross-libel, bear no relevancy to the issues now before us and do not, therefore, constitute a "necessary and indispensable ingredient of the record upon review." (Territory v.Montgomery,
To ameliorate any possible inequities or gross sacrifice which may result from that portion of the decree directing payment of the gross award of $5,000.00 within six months after entry, and inasmuch as it is uncontradicted that appellant has made conscientious and timely compliance with all provisions directing payments for the maintenance and support of the minor children since the first payment on April 10, 1954, we are of the opinion that the temporal provision of the decree with reference to the gross award should be modified.
The decree is modified in that respect alone and it is ordered that payment of the sum of $5,000.00 as alimony in gross be made in installments of $30.00 per month commencing on the first day of the first month next succeeding the entry of this mandate in the circuit court; said installments *658 to continue until the eldest minor child shall attain the age of 21 years or would have attained that age had she lived. Payments thereafter, commencing on the first day of the first month next succeeding the twenty-first birthday of said minor child and on the first day of each and every month thereafter, to be in installments of $100.00 per month until the sum of $5,000.00, interest free, shall be fully paid.
The decree appealed from is affirmed with the foregoing modification.